All visa applicants and visa holders who want to enter or stay in Australia must pass the Character Test as outlined in Section 501 of the Migration Act 1958 (Cth) (‘the Act’).
As part of the visa application process, the Department of Immigration and Border Protection (‘DIBP’) will ask you to disclose any criminal or security related history in your visa application, and in most cases, supply police clearance certificates. This information will be used to evidence whether you pass the Character Test.
Furthermore, all visa holders in Australia must continue to meet the character requirements otherwise risk having their visas cancelled. In some serious cases, your visa must be cancelled due to serious and substantial criminal convictions whilst holding an Australian visa.
The Character Test is the same for both visa applicants and visa holders.
Character Test – Section 501(6) of the Act
The DIBP has been given delegated power from the Minister for Immigration and Border Protection (‘the Minister’), who will determine whether you pass the Character Test, which is outlined in section 501(6) of the Act. It explains circumstances where you will NOT pass the character test if:
How Do I Pass The Character Test?
You must satisfy the Minister that you are of good character and have NOT been caught by any of the section 501(6) offences. If you are NOT caught by any of the section 501(6) offences, you are taken to have satisfied the Minister that you PASS the Character Test, and subsequently satisfying the character requirements of your visa application.
Conversely, if you ARE caught by the section 501(6) offences you are taken to have FAILED the Character Test, and subsequently not satisfying the character requirements of your visa application or visa holder conditions!
What Happens if I Fail The Character Test?
If you are a visa applicant and have failed the character test, this means that you have NOT satisfied the Minister that you are of good character, and the Minister has the ‘discretionary power’ to refuse your visa application.
Alternatively, if you are a visa holder the Minister has the ‘discretionary power’ to cancel your current visa.
What Does ‘Discretionary Power’ Mean?
If you have NOT satisfied the Minister that you are of good character, then the Minister has a discretion (discretionary power) to grant, refuse, or cancel your visa. This discretionary power only arises if the Minister is NOT satisfied that you pass the Character Test.
This essentially means that the Minister will now need to make a final decision according to section 501(6), that you ARE NOT of good character (since you have failed to convince the Minister that you are of good character). Before a final decision is ready to be made, the Minister has further Directions under section 499 of the Act, directing how the character provisions are to be applied.
Subsequently, this directs the Minister (and delegates) to Ministerial Direction No. 65 (commenced on 23 December 2014), which are directions to guide decision-makers performing functions or exercising powers under section 501 of the Act. This is significant because, it provides guidance and instructions to those decision-makers, as to when a person is NOT of good character, and the important considerations which must be considered before making a final decision on your visa application or visa status.
This is important for you to understand because it directs the decision-makers to consider all your relevant circumstances, especially those which relate to the protection of the Australian community, best interests of minor children in Australia and the expectations of the Australian community. Furthermore, unlike government policy (which we have mentioned in our previous blogs), Ministerial Directions have the force of the law, and therefore not only bind the DIBP decision-makers (case officers) but also Tribunal members (the decision-makers who deal with appeals at the Administrative Appeals Tribunal). It is therefore fundamental that when responding to the DIBP in relation to your character, that this Ministerial Direction be understood and applied correctly.
What Are My Options If I Fail The Character Test?
If you find yourself in a situation where you suspect that you may not pass the Character Test, or if you have received formal notification from the DIBP relating to your character, it is worth discussing your case with our Registered Migration Agents. It will be our job to persuade the Minister (and delegates) that you are of good character, and if you have failed the Character Test, that they exercise their ‘discretionary powers’ to consider all the relevant considerations and take into account all your circumstances before making a final decision. Get in contact on 1300 644 788 or send your questions here.
Also, click here for more great blogs by our Immigration Lawyers.
Otherwise you can contact us at the following address:
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma
As part of the visa application process, the Department of Immigration and Border Protection (‘DIBP’) will ask you to disclose any criminal or security related history in your visa application, and in most cases, supply police clearance certificates. This information will be used to evidence whether you pass the Character Test.
Furthermore, all visa holders in Australia must continue to meet the character requirements otherwise risk having their visas cancelled. In some serious cases, your visa must be cancelled due to serious and substantial criminal convictions whilst holding an Australian visa.
The Character Test is the same for both visa applicants and visa holders.
Character Test – Section 501(6) of the Act
The DIBP has been given delegated power from the Minister for Immigration and Border Protection (‘the Minister’), who will determine whether you pass the Character Test, which is outlined in section 501(6) of the Act. It explains circumstances where you will NOT pass the character test if:
- You have a substantial criminal record. This includes:
- sentences to 12 months or more in prison, or multiple sentences adding up to more than 12 months in prison. A suspended sentence is considered a prison sentence;
- acquittal of an offence on the grounds of unsoundness of mind or sanity, and as a result has been detained in a facility or institution;
- where you have been found by a court to not be fit to plead, and nonetheless based on evidence found, that you committed the offence and resulting you being detained in a facility or institution.
- You have been convicted of escaping from immigration detention, or convicted for an offence that you committed:
- while you were in immigration detention;
- during an escape from immigration detention; or
- after an escape, but before you were taken into immigration detention again.
- The Minister reasonably suspects you are or have been a member of a group or organisation, or has had or has an association with a person, group or organisation that has been or is involved in criminal conduct;
- The Minister reasonably suspects that you have been involved in people smuggling, people trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern (whether or not you have been convicted of such offence);
- Your past and present criminal or general conduct shows that you are not of good character;
- There is a risk that while you are in Australia you would:
- Engage in criminal conduct;
- Harass, molest, intimidate or stalk another person;
- Vilify a segment of the Australian community;
- Incite disorder in the Australian community or in a part of it;
- Be a danger to the Australian community or a part of it.
- You have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child;
- You have been charged with war crimes or crimes against humanity etc;
- You are subject to an adverse security assessment by the Australian Security Intelligence Organisation;
- You are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community.
How Do I Pass The Character Test?
You must satisfy the Minister that you are of good character and have NOT been caught by any of the section 501(6) offences. If you are NOT caught by any of the section 501(6) offences, you are taken to have satisfied the Minister that you PASS the Character Test, and subsequently satisfying the character requirements of your visa application.
Conversely, if you ARE caught by the section 501(6) offences you are taken to have FAILED the Character Test, and subsequently not satisfying the character requirements of your visa application or visa holder conditions!
What Happens if I Fail The Character Test?
If you are a visa applicant and have failed the character test, this means that you have NOT satisfied the Minister that you are of good character, and the Minister has the ‘discretionary power’ to refuse your visa application.
Alternatively, if you are a visa holder the Minister has the ‘discretionary power’ to cancel your current visa.
What Does ‘Discretionary Power’ Mean?
If you have NOT satisfied the Minister that you are of good character, then the Minister has a discretion (discretionary power) to grant, refuse, or cancel your visa. This discretionary power only arises if the Minister is NOT satisfied that you pass the Character Test.
This essentially means that the Minister will now need to make a final decision according to section 501(6), that you ARE NOT of good character (since you have failed to convince the Minister that you are of good character). Before a final decision is ready to be made, the Minister has further Directions under section 499 of the Act, directing how the character provisions are to be applied.
Subsequently, this directs the Minister (and delegates) to Ministerial Direction No. 65 (commenced on 23 December 2014), which are directions to guide decision-makers performing functions or exercising powers under section 501 of the Act. This is significant because, it provides guidance and instructions to those decision-makers, as to when a person is NOT of good character, and the important considerations which must be considered before making a final decision on your visa application or visa status.
This is important for you to understand because it directs the decision-makers to consider all your relevant circumstances, especially those which relate to the protection of the Australian community, best interests of minor children in Australia and the expectations of the Australian community. Furthermore, unlike government policy (which we have mentioned in our previous blogs), Ministerial Directions have the force of the law, and therefore not only bind the DIBP decision-makers (case officers) but also Tribunal members (the decision-makers who deal with appeals at the Administrative Appeals Tribunal). It is therefore fundamental that when responding to the DIBP in relation to your character, that this Ministerial Direction be understood and applied correctly.
What Are My Options If I Fail The Character Test?
If you find yourself in a situation where you suspect that you may not pass the Character Test, or if you have received formal notification from the DIBP relating to your character, it is worth discussing your case with our Registered Migration Agents. It will be our job to persuade the Minister (and delegates) that you are of good character, and if you have failed the Character Test, that they exercise their ‘discretionary powers’ to consider all the relevant considerations and take into account all your circumstances before making a final decision. Get in contact on 1300 644 788 or send your questions here.
Also, click here for more great blogs by our Immigration Lawyers.
Otherwise you can contact us at the following address:
Salvo Migration
320 Adelaide St
Brisbane QLD 4000
https://goo.gl/Bao5ma
Originally Published here: Do You Pass the Character Test?
Originally Published here: Do You Pass the Character Test?
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